Aboriginal Heritage Regulations 2018

ELIZABETH GIBSON, General Manager of CMPA.

The Aboriginal Heritage Regulations 2018 commenced on 23rd May 2018. As per the Aboriginal Victoria website (www.vic.gov.au):

“The new Regulations are substantially similar to the former Aboriginal Heritage Regulations 2007 with several key changes.

These are:

• nature conservation reserves defined under the Crown Land (Reserves) Act 1978 are areas of cultural heritage sensitivity;
• the definition of ‘waterway’ explicitly includes channelised sections of named waterways;
• areas of cultural heritage sensitivity related to geological formations are more accurately mapped by relying on the recently published Surface Geology of Victoria 1:250,000 map book;
•  the listed high impact activities include residential buildings (such as residential hotels and hostels) and residential villages;
• the prescribed fees more accurately compensate the decision maker for expenses in carrying out prescribed functions which incur a fee.

Other changes include the addition of strategic fuel breaks as a high impact activity, and an increase to the length of walking and bicycle tracks that require a cultural heritage management plan.

Aboriginal Victoria’s guides, forms and practice notes will be updated to account for the changes in the Aboriginal Heritage Regulations 2018, as will the indicative mapping of cultural heritage sensitivity on the Aboriginal Cultural Heritage Register and Information System (ACHRIS). The fees charged by Aboriginal Victoria through ACHRIS will also be updated to reflect the fee units set out in the Aboriginal Heritage Regulations 2018.”

CMPA comments on the Aboriginal Heritage Regulatory Impact Statement (RIS)

The RIS accompanied the draft Aboriginal Heritage Regulations 2018. (note: submission due date of 9th May 2018)

Executive Summary

p. vii: By stakeholders does this include all parties RAPs, industry, consultants and what weighting was given to stakeholders’ feedback?

p. ix: The Allen Consulting Report prepared for the Heritage Chairs and Officials of Australia and New Zealand: “Valuing the priceless: The value of historic heritage in Australia”, Research Report 2 2005 is referred to throughout the RIS and specifically excludes indigenous heritage and so should not be relied upon for the RIS.

p. x: The majority of CHMPs are complex studies so it is not surprising that they account for 97% of the cost of management conditions.

p. xiii: “AV considers that the CHMP process remains an effective heritage management tool.” There is no emphasis on the quality of Aboriginal Heritage being found and its usefulness in preserving meaningful Aboriginal Heritage.

p. xv. 2nd dot point: Updating the areas of cultural heritage sensitivity by expanding the definition of “waterways to ensure that tributaries of named waterways and channelized sections” is not supported due to the all-encompassing nature of the definition. It also appears to be inconsistent with the definition for a waterway in the draft AH Regulations 2018.

Areas of cultural heritage sensitivity should logically be areas where there is a demonstrably high risk that Aboriginal heritage materials will occur in undisturbed settings. There is no need to extend the number or scope of areas of cultural heritage sensitivity currently listed in the Regulations. The problem is that the scope and definition of the current areas of cultural heritage sensitivity are too broad, which generates the requirement for a CHMP where the genuine Aboriginal heritage risks are low. This has not been addressed in the draft AH Regulations 2018.

Also not addressed in CMPA previous submission on the discussion paper was that the current definition of the area of cultural heritage sensitivity extending 200m either side of a waterway is unnecessarily large when the data in the Victorian Aboriginal Heritage Register clearly shows that the majority of artefacts occur within 20-50 m of a waterway.

The area of cultural heritage sensitivity adjacent to a waterway should only extend 50 m either side of a waterway. An additional problem is that under the current definition of “waterway” in the
Regulations, an artificial channel, not on the alignment of the original waterway that is named on the Register of Geographical Place Names with the word “creek” (for example Bendigo Creek) is, by definition, a waterway. As a result, high impact activities within 200 m of the artificial channel of Bendigo Creek trigger the requirement for a CHMP to be undertaken. The current definition in Regulation 4:

“waterway means—

(a) a river, creek, stream or watercourse the name of which is registered under the Geographic Place Names Act 1998;”

should be amended along the following lines:

“a natural channel of a river, creek, stream or watercourse the name of which is registered under the Geographic Place Names Act 1998”

Any artificially constructed channel, race, pipeline or other construction that may or may not be connected to a natural channel is not a waterway, even if the name is registered under the Geographic Place Names Act 1998.

This proposal by CMPA was totally disregarded in the RIS.

p. xv 4th dash: “ensure that management conditions recommended are consistent with the conclusions of the assessment”. There are issues with current management conditions, for example:

• the requirement of a quarry owner to retain pebbles of a certain size for collection by the RAP: the said pebbles subsequently never having been collected;
• the requirement of a quarry owner to have an induction by the RAP for every employee and contractor prior to their commencement at a quarry site ($1200 for 20 minute induction).

More guidance is required for management conditions which should be set so that they are relevant, realistic and practicable in their preservation of Aboriginal Heritage. Please see CMPA’s submission on the Discussion Paper 2017 for further comments. It is noted that CHMP guidance material is to be amended to provide greater clarity to CHMP sponsors and RAPs regarding the standards required for a CHMP by ensuring that the management conditions recommended are consistent with the conclusions of the assessment. CMPA would like the opportunity to comment on these amendments.

p. xix Preferred fee option: “Fee option 2 results in estimated annual revenue of approximately $1.6 million for Government and $300,000 for RAPs.”. The Wathaurang Aboriginal Corporation had income for CHMPs listed as $154K for 2016/17 (available from the Office of the Registrar of Aboriginal Corporations, www.oric.gov.au ). With 10 active RAPs in Victoria this equates to approximately $1.54 million per annum: nearly 5 times that cited in the RIS.

Summary

In summary, the interpretation of the Regulations and the policy and practice of the RAPs has created an adversarial environment for CHMPs, which was never the intent. An environment for
cooperative discussion and exchange between Sponsor, heritage advisor and RAP does not currently exist and has not been addressed by the draft AH Regulations 2018. There are a number of issues that have not been addressed by the RIS, including:

• Costs from delays in the CHMP process;
• Lack of a prompt and binding arbitration mechanism;
• Disconnect between RAPs expectations and the regulations;
• Triggers for CHMPs – inaccurate or excessive mapping of cultural heritage sensitivity;
• Excessive penalties and enforcement.

Mandatory public reporting of the total cost for each approved CHMP with a breakdown between the RAP fees and consultants’ fees, together with the time taken for preparation and approval of the CHMP would be of benefit.

In conclusion, an opportunity has been missed to resolve the many issues raised by CMPA in this submission (and previous CMPA submissions including to the 2017 discussion paper) and as such the proposed AH Regulations 2018 and accompanying RIS were not supported.

It was disappointing to note that the CMPA submission had little if any impact at all on the subsequently made Aboriginal Heritage Regulations 2018 that commenced on the 23rd May 2018.

However, CMPA will continue to work with Aboriginal Victoria and Aboriginal Victorians to achieve mutually beneficial outcomes.

The full submission is available on www.cmpa.asn.au

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